June 14, 2012 by Canadian Underwriter
The Ontario Court of Appeal’s January 2012 decision in Jones v. Tsige, which recognized the tort of “intrusion upon seclusion” as a cause of action in Ontario, may have significant implications for policyholders and insurers, a paper from Blaney McMurtry LLP states.
The New Tort Relating to Invasion of Privacy: Insurance Implications is co-authored by David R. Mackenzie and Jason P. Mangano.
“It is clear that modern concepts of privacy, and more importantly, the concept of what constitutes a violation of privacy, have expanded beyond the fixed parameters of [U.S. tort scholar William] Prosser’s four forms of privacy violations,” the paper note, adding the “Ontario Court of Appeal’s decision broadens the reach of the tort considerably.”
The court’s decision means a plaintiff must establish three broadly drawn elements:
• the defendant’s conduct must be intentional or reckless;
• an invasion, without lawful justification, of the plaintiff’s private affairs or concerns; and
• a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.
“Policyholders and insurers will watch with interest as each of these factors is reviewed by courts, and the scope of each is determined,” the paper states. “Perhaps none will be so closely watched as the development of the term, ‘private affairs or concerns.’
“What constitutes ‘private affairs and concerns?’ The Jones decision clearly demonstrates that bank accounts fall within the scope of the term.”
Also, the application of the tort in the context of social media will undoubtedly give rise to interesting case law, the paper adds.
“Can a Facebook page or Twitter account, where a person may have hundreds or thousands of ‘friends’ or ‘followers,’ constitute ‘private affairs or concerns?’ Does spam email constitute an ‘invasion’ of a person’s privacy? What about taking a picture of a neighbour sunbathing in their back yard?”
The full paper can be read at: